Wyatt v. State , 49 Tex. Crim. 193 ( 1906 )

The judgment was affirmed at a former day of this term, and the motion for rehearing is predicated upon error in the court holding that appellant's presence was not necessary when the verdict was received from the jury, and cites us to article 633, Code Criminal Procedure, which is as follows: "In all prosecutions for felonies, the defendant must be personally present on the trial, and he must likewise be present in all cases of indictment or information for misdemeanors where the punishment or any part thereof is imprisonment in jail." Article 749, which must be construed in connection with article 633, supra, provides, "In all felony cases the accused must be present when the verdict is returned into court, but in misdemeanor cases the verdict may be received in the absence of the defendant." We do not believe these two statutes are contradictory or in conflict with each other. It is a familiar rule that, where two statutes are in apparent conflict they must be reconciled, if possible, so that both may stand. In our judgment, it is a correct construction of these two articles to hold that they can stand, and that article 633, providing that in misdemeanor cases involving imprisonment as a part of the punishment, is not inharmonious with article 749, which authorizes the reception of the verdict at the conclusion of the trial in the absence of the defendant in misdemeanor cases. In all felonies and misdemeanors involving jail imprisonment the party must be present during the trial by the terms of article 633, but by the terms of article 749, in felony cases the defendant must be present when the verdict is returned; whereas in misdemeanors it is not necessary, showing the legislative intent was to draw a distinction between what is termed a trial and the reception of the verdict at the hands of the jury. This construction harmonizes the two statutes; and in our judgment is in accord with the intent of the Legislature in passing the two statutes. That body has seen proper to make that distinction, and it was within their province to do so. Therefore, we are of opinion that the motion for rehearing is not well taken. The motion is accordingly overruled.

Overruled.